On January 15, Osiris Aristy opened up Facebook, posted a photo of a
gun and wrote, “feel like katxhin a body right now.” Later that night,
he added, “N… run up on me, he gunna get blown down” and followed that
with an emoji of a police officer and three gun emoji pointing at it.
After an hour, he posted another similar message.
Three days
later, Aristy, 17, was arrested by New York City police at his home inBrooklyn. According to a criminal complaint, the teen was charged with
making a terroristic threat, along with charges of weapon and marijuana
possession. His posts, the complaint argued, constituted a threat
against police. They felt intimidated and harassed-emoji and all. o_O
Emoji
are the language of our online era, the thumbs-up to a question, the
wink to our wit, the peach to our eggplant. They’re a splash of color in
black and white communication, conveying things mere words often
cannot. We send emoji to improve upon, even expand, our words and bring
emotion-affection, frustration, love, anger-to the conversation.

Now, like the tweets, posts, and texts that are a crucial part
of the way we communicate today, emoji, and their brethren emoticons,
are finally getting their due in court. And like everything we love
online, it’s complicated, kind of.
Several recent arrests and
prosecutions have included, at least in part, emoji. At the beginning of
the recent Silk Road trial of Ross Ulbricht, US District Judge
Katherine Forrest ruled “the jury should note the punctuation and
emoticons” in all evidence. (In the trial, attorneys then, quite
literally, said “emoticon” when the symbols appeared in chat
conversations.) In a case currently pending before the US Supreme Court,
Anthony Elonis, a Pennsylvania man who was convicted for using Facebook
posts to threaten his ex-wife, has claimed that a threatening post
toward her was clearly meant in “jest” because he included a smiley
sticking its tongue out.
None of these cases relied solely on the
emoji, of course. Evidence, arrests, and prosecutions are far more
complicated than that. But, as social media becomes increasingly
important evidence for law enforcement, so too do emoji. When the
digital symbol for a gun, a smile, or a face with stuck-out tongue comes
up in court, they aren’t being derided or ignored.
Emoji matter.
When
you talk to someone in person, you hear the intonation of their voice,
see the cringe of their face, and react to the movement of their body.
Online, we have only words. “If I were texting or emailing you, you
couldn’t get that,” says Tyler Schnoebelen, a linguist and the founder
of Ibidon, which helps companies analyze and understand language data
from emails, chats, and social media. “I might do other things-add emoji
or emoticons, words like LOL, or include multiple vowels, like soooo,
just so you have a sense of how I’m emoting.”
Such things can
stand in for a facial expression, or clarify context. They can transform
a sentence that seems serious into a joke, or make what seems to be a
joke serious. They can be playful, sarcastic, ambiguous, and dirty.
Sometimes, they replace words altogether.
And if someone is to
fully understand a text phrase or conversation-to truly parse what we
were saying-they cannot be left out. That means that in court-if the
larger piece of evidence is seen as authentic and admissible-the emoji
should be read or shown, too.
Yet this can quickly get
complicated because it’s not always clear what emoji mean. For
investigators, attorneys, and jurors trying to determine, or prove, the
intent of a phrase, as in the Elonis case, it’s often much more
complicated than : ) means this past sentence was pleasing. Maybe the
person was being polite. Maybe they were trying to dull a blow. Maybe
it’s an evil grin and the person is being ironic. Without the context of
who is using the symbol, who received it, and an understanding of how
those two people-or the people in their community-typically use it, the
intent may not immediately be clear.
We all use emoji, and we all
have opinions. So, it’s no surprise that the recent public reaction to
emoji cropping up in evidence has been somewhat frenetic. “What do Emoji
mean?” asks The Atlantic, while wondering if they’re “vital.” Mashable
says the law around emoji is “murky.” The New York Times considers “how
jurors should be educated about unfamiliar terms” in cases with web
evidence. And BuzzFeed says, well, let’s just blame 9/11. These
questions, in part, are real and important-we don’t always know what
emoji mean and, sure, they may be unfamiliar. But, besides tweaking
already common practices, emoji shouldn’t change all that much in court.
Because
what we mean when we use language is never crystal clear, and never has
been. “Emoji are new, so they haven’t been conventionalized,”
Schnoebelen explains. “But they work like a lot of other things that we
know. And, just like with any particular word or a laugh, it’s pretty
dangerous to say that you know what’s happening, what the intent is,
based on one symbol.” Part of the role of a prosecutor in a criminal
trial, like in the case of a threat, can be to demonstrably prove
intent-and that is complicated both with emoji or without.
To
help clarify intent, technical language, or slang, attorneys may ask
witnesses or defendants to explain the meaning of the language they used
or read. “To me, emoji are no different than drug slang in a criminal
controlled substances case,” explains Greg Hurley, an analyst for the
National Center for State Courts who spent a decade as a criminal
defense attorney. “They may need some interpretation in some situations,
in others the content may be obvious.” Want to know what an emoji
implies? Ask. (Which is exactly what happened at one point in the Silk
Road trial.)
And, even if a juror unfamiliar with emoji might
misunderstand or misinterpret their meaning at first, they can learn.
“More users pick up on the conventions after interacting for a while
with others who use them,” says Susan Herring, a professor of
information science and linguistics at Indiana University Bloomington.
“Emoji in isolation could cause some puzzlement, but in the context of a
textual message, though, the sender’s intended meaning of an emoji is
usually clear.” Because humans are smart! We’re used to dealing with the
complexities of language. With some context and explanation, we can,
usually, figure it out.
Like the rest of us, when it comes to
emoji, the courts are figuring it out. Last week, Aristy’s criminal
charge of making a terroristic threat was dropped, according to his
attorney, Fred Pratt. A decision in the Elonis case, which deals
predominantly with more complex First Amendment questions about threats,
is pending. Ulbricht was convicted of all seven charges against him in
the Silk Road case.
Emoji were, at most, a sideshow for all of
these trials, but they have become an integral part of our digital life.
And that means they, like the tweets and texts and IMs we so often
send, will increasingly be offered as evidence in court.
So,
remember, anything you ; ) can and will be used against you in a court
of law – but, that’s true of what you say, too. ¯_(?)_/¯